Excerpt: - .....of village karwa, which, on his death devolved upon his widows, dhirajkuar and champakuar, -/5/-village share being mutated in the name of dhirajkuar and -/3/- in that of champakuar. champakuar, however, remarried and left the family sometime in the year 1938 and consequently her -/3/- village share reverted to dhirajkuar.3. kanwalsingh left behind two sons, manpoo-lalsingh, the plaintiff, and tiloksingh, father of appellant no. 2, dwarkaprasad, mannoolalsingh was the son of his legally married wife. tiloksingh was born of kanwalsingh from mst. akalo and his legitimacy is in question. according to the plaintiff, mst. akalo was the mistress of kanwalsingh and not his legally married wife. on the other hand, the case of the defendants was that mst. akolo had married kanwalsingh after.....

Judgment:

1. This is defendants' appeal from the decree of the First Additional Civil Judge, Class I, Bilaspur, in Civil Suit No. 2-A of 1950, by which a deed of gift Ex. P-9 dated 16-4-1949, executed by Mst. Bhirapkuar, appellant No. 1, in favour of Dwarkaprasad, appellant No. 2, has been held to be not binding on the plaintiff-respondent, Mannoolalsingh, now represented by his sons and widow, respondents 1(a), (b), (e) and (d).

2. Prithisingh, the propositus of the family, left behind four sons, Chaitsingh, Bhawarsingh, Kanwal-singh, and Nawalsingh. Bhawarsingh was married to Mst. Akalo from whom he had a son, Tikaftsingh, who died on 24-4-1984. Tikaitsingh held -/8/- share of village Karwa, which, on his death devolved upon his widows, Dhirajkuar and Champakuar, -/5/-village share being mutated in the name of Dhirajkuar and -/3/- in that of Champakuar. Champakuar, however, remarried and left the family sometime in the year 1938 and consequently her -/3/- village share reverted to Dhirajkuar.

3. Kanwalsingh left behind two sons, Manpoo-lalsingh, the plaintiff, and Tiloksingh, father of appellant No. 2, Dwarkaprasad, Mannoolalsingh was the son of his legally married wife. Tiloksingh was born of Kanwalsingh from Mst. Akalo and his legitimacy is in question. According to the plaintiff, Mst. Akalo was the mistress of Kanwalsingh and not his legally married wife. On the other hand, the case of the defendants was that Mst. Akolo had married Kanwalsingh after the death of Bhawarsingh in accordance with the custom of the caste.

4. Dhirajkuar executed a deed of gift dated 16-9-1949 in favour of Dwarkaprasad. The plaintiff instituted the suit from whieh this appeal arises, for a declaration that the transfer was not binding on the reversioners after the demise of Dhirajkuar. According to him, although the parties are Raj-Gonds, they had long ago adopted Hinduism and were classed as Kshatriyas. His case, therefore, was that Dhirajkuar held only a widow's interest in the property and accordingly had no absolute power of disposition.

5. The defendants denied that the parties had adopted Hinduism or were governed by the Hindu Law. In this view, they contended that Dhirajkuar was the absolute owner of the village share in question. They further contended that Tikaitsingh had left a will a day before his death by which he had given absolute right to his widows in the village share after his death. In this view also they challenged the right of the plaintiff to question the alienation of Dhirajkuar. Their further plea was that Tiloksingh was all along joint with his uterine brother Tikaitsingh and, therefore, his son Dwarkaprasad as a joint member of the family has a preferential claim to inheritance.

6. The trial Court held that the parties had adopted lex loci of the province, namely, Benaras School of Hindu Law, and therefore, the widows got only a limited interest in the property of Bhawarsingh. It also held that no valid marriage between Kanwal-singh and Mst. Akalo was established and accordingly Dwarkaprasad being the son of the illegitimate issue of Kanwalsingh could not compete with the plaintiff in the matter of inheritance. As regards the will of Tikaitsingh setup by the defendants, the Court held that its execution by Tikaitsingh in a proper disposing mind was not established. In this view, it granted a decree to the plaintiff declaring his right to the property after the demise of Dhirajkuar.

7. An objection has been raised that since the passing of the Hindu Succession Act, 1956, the plaintiff's character as revcrsioner has ceased to exist and accordingly his suit is liable to be dismissed. This question was considered recently by the Patna High Court in Ram Ayodhya Missir v. Raghu-nath Missir, 1956 Bih L J R 734 (A), in which, in similar circumstances, the suit of the plaintiff was held to be untenable and was dismissed. The learned Counsel for the respondents has only formally demurred to this view, but was not able to give any particular points against it. On a reading of the Hindu Succession Act, it appears to us that the case of Ham Ayodhya Missir (A) was correctly decided.

8. Section 6 of the Hindu Succession Act deals with devolution of interest in co-parcenary property. While the main part of the section purports to keep intact devolution by survivorship, the Proviso attached to it makes an exception where the deceased has left surviving a female relative specified in class (1) of the schedule or a male relative specified in the class, who claims through such female relative. A widow is one of the female relatives specified in that class.

Therefore, under the Proviso to Section 6, the village share in question devolved upon the widows of Bhawarsingh (Tikaitsingh ?) by succession under the Act and not by survivorship. Under the Explanation to Section 14 of: the Act, the village share was the. property possessed by Dhirajkuar within the meaning of Sub-section (1) of Section 14. This sub-section is ex-j pressly retrospective in character and, therefore, the village share in the hands of Dhirajkuar must be deemed to have been held by her as a full owner, and not as a limited owner.

The exception provided in Sub-section (2) of Section 14 is not attracted in this case because it is nobody's contention that a restricted estate was created in her favour' by the alleged will of Tikaitsingh. It is no doubt true that under Clause (b), Sub-section (2) of Section 15, of the Act, the property would devolve, on Dhiraj-kuar's death, upon the heirs of her husband. This does not, however, mean that the law recognises any reversionary rights in them.

This provision only specifies the persons who would be her heirs on her demise, and therefore she would become the stock of descent and the estate would go to the persons specified therein as her own personal heirs. Under the scheme of the Act, therefore, the reversionary rights which were so long recognised by the Hindu Law stand abrogated.

9. Before the enactment of the Hindu Succession Act, a Hindu widow did not take the estate merely for life, for in certain cases, she could dispose of the whole estate inherited by her which she could not do if she were a mere life-tenant. Therefore, what vested in her was not a mere life estate but the whole estate. She also represented the estate completely and it was for this reason that in certain cases a decree passed against her with reference to property inherited by her was binding not only upon herself but also upon the reversioners, though they were not parties to the suit, Her estate was, therefore, an absolute one subject to the restrictions on her power of alienation. These limitations were not imposed upon her for the benefit of the reversioners, for she could not alienate the property except for legal necessity. Even if there were no reversioners, these limitations were inseparable from her estate and it is on this account that the next reversioner was given the right to question her alienations even during her own life-time so as to be binding upon all the body of the reversioners. Since now the widow's estate has been abolished by the Hindu Succession Act, it necessarily follows that the right of a reversioner, which is otherwise a spes suceessionis, cannot now be enforced. Since Section 14 of the Act is expressly retrospective in character and there was no vested interest in a reversioner in the property inherited by a Hindu widow, the provisions of the Act must be applied to a case even at the stage of appeal See Lachmeshwar Prasacl Shukul v. Keshwar Lal, 1940 FCR 84 : (ATR 1941 FC 5) (B). The suit cannot, therefore, be maintained aftei the enact-ment of the Hindu Succession Act.

10. The result is that the appeal is allowed, the decree of the lower Court is set aside and the suit is dismissed. Parties shall, however, suffer their own costs of both the Courts.